Language of document : ECLI:EU:C:2016:854

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 10 November 2016 (1)

Case C‑660/15 P

Viasat Broadcasting UK Ltd

v

European Commission

(Appeal — State aid — Aid implemented by the Danish authorities in favour of the Danish public service broadcaster TV2/Danmark — Public funding granted to offset the costs involved in the performance of public service obligations — Decision declaring the aid compatible with the internal market — Relationship between Articles 106(2) and 107(1) TFEU)





1.        By its appeal, Viasat Broadcasting UK Ltd (‘Viasat’) requests the Court to set aside the judgment of 24 September 2015 in Case T‑125/12, (2) by which the General Court dismissed its action seeking the annulment of Decision 2011/839/EU, (3) in so far as the Commission in that decision had found certain measures implemented by the Kingdom of Denmark in favour of TV2/Danmark to be compatible with the internal market under Article 106(2) TFEU. (4)

2.        When viewed through the lens of State aid discipline, this appeal raises an important issue in relation to the funding of public service obligations. Essentially, Viasat questions the relationship between the conditions laid down in the landmark judgment in Altmark (5) and those which follow from Article 106(2) TFEU. (6) The gist of Viasat’s appeal is to suggest that the European Commission ought to apply the Altmark conditions when considering whether aid can be declared compatible under Article 106(2) TFEU. The General Court has rejected that idea on several occasions, (7) and the Court is now called upon to consider it for the first time since Altmark was handed down.

3.        For the reasons set out below, I am of the opinion that the General Court was right to reject such an idea. Consequently, I recommend that this appeal be dismissed.

I –  Background to the proceedings

4.        Following a complaint lodged on 5 April 2000, by decision of 19 May 2004 the Commission ordered the Kingdom of Denmark to recover DKK 628.2 million, together with interest, from the autonomous State undertaking TV2/Danmark. (8) That decision was subsequently annulled by the General Court in October 2008. (9)

5.        Meanwhile, since the effect of that decision was to render TV2/Danmark’s successor (the public limited liability company TV2/Danmark A/S (10)) insolvent, the Kingdom of Denmark notified the Commission, by letter of 23 July 2004, of a planned recapitalisation of TV2. By decision of 6 October 2004, the Commission considered that any element of State aid that might be connected with the planned recapitalisation of TV2 was compatible with the internal market under what is now Article 106(2) TFEU. (11) In September 2009, the General Court held that it was not necessary to rule on certain legal challenges brought against that decision. (12)

6.        Following the annulment of the decision mentioned above at point 4, in April 2011 the Commission adopted the contested decision after reassessing the measures in question and consulting the interested parties. The contested decision concerns the measures granted to TV2 between 1995 and 2002. However, in its analysis, the Commission also took into account the recapitalisation measures taken in 2004 referred to above at point 5 (taken together: ‘the measures at issue’).

7.        In the contested decision, the Commission classified the measures at issue as State aid within the meaning of Article 107(1) TFEU in favour of TV2. The Commission then concluded that the sum of DKK 628.2 million was a capital buffer appropriate for TV2. Accordingly, Article 1 of the contested decision states:

‘The measures implemented by [the Kingdom of] Denmark in favour of [TV2] between 1995 and 2002 in the form of the licence fee resources and other measures discussed in this Decision are compatible with the internal market within the meaning of Article 106(2) [TFEU].’

II –  Procedure before the General Court

8.        By application lodged on 14 March 2012, Viasat brought an action seeking the annulment of the contested decision.

9.        In support of its action, Viasat submitted two grounds for annulment, namely, first, that the Commission erred in law by assessing the compatibility of the measures at issue with the internal market under Article 106(2) TFEU, without taking account of the second and fourth Altmark conditions, and, second, that the Commission breached Article 296 TFEU by failing to explain, in the contested decision, why Article 106(2) TFEU applied in that case, even though the second and fourth Altmark conditions were not satisfied.

10.      Following a public hearing held on 15 January 2015, in the judgment under appeal, the General Court concluded that it was unnecessary to adjudicate on the action in so far as it sought the annulment of the part of the contested decision in which the Commission had found that the advertising revenue from 1995 and 1996 paid to TV2 by the so-called TV2 Fund amounted to State aid (for the reasons therefor see point 18 below), and dismissed the action as to the remainder. It also ordered Viasat to bear its own costs and those of the Commission, and ordered the Kingdom of Denmark and TV2 each to bear their own costs.

III –  Procedure before the Court and forms of order sought

11.      By appeal lodged with the Court on 8 December 2015, Viasat submits that the Court should:

–        set aside the judgment under appeal;

–        annul the contested decision;

–        order the Commission to pay the costs of Viasat both incurred in the first instance and before the Court;

in the alternative:

–        set aside the judgment under appeal;

–        refer the case back to the General Court;

–        reserve the costs of the proceedings at first instance and on.

12.      By response lodged on 11 February 2016, the Commission submits that the Court should dismiss the appeal as inadmissible, unfounded and inoperative, and order Viasat to pay the costs of both instances.

13.      By response lodged on 19 February 2016, TV2 requests the Court to dismiss the appeal. In the alternative, should the Court allow the appeal, TV2 requests the Court to maintain the effects of the judgment under appeal and the contested decision, pursuant to Article 264(2) TFEU. Lastly, TV2 requests the Court to order Viasat to pay TV2’s costs.

14.      By response lodged on 22 February 2016, the Kingdom of Denmark requests the Court to dismiss the appeal.

15.      Pursuant to Article 76(2) of the Rules of Procedure of the Court of Justice, no hearing was held.

IV –  Analysis

A –    Introductory remarks

16.      The issue of compensation for the discharge of the public service broadcasting obligation imposed on TV2 has been heavily litigated before the General Court. (13) This is, however, the first time that the Court is called upon to consider this longstanding dispute.

17.      In addition to the present case, three appeals brought by Viasat, TV2 and the Commission respectively are currently pending before the Court. Those appeals all concern a ruling, delivered on the same day as the judgment under appeal, in which the General Court partly upheld an action brought by TV2 seeking the annulment of the contested decision in so far as that decision found that the measures at issue constituted State aid. (14)

18.      In the other judgment under appeal, the General Court, in line with TV2’s arguments, first, annulled the contested decision in so far as the Commission had found that the advertising revenue for the years 1995 and 1996 paid to TV2 through the medium of the TV2 Fund constituted State aid, since the General Court considered that the requirement of ‘State resources’ was not met (see paragraphs 211 to 220 of the other judgment under appeal). (15) Second, the General Court held, in relation to the second Altmark condition, that the Commission had erred in law by requiring that the compensation payable to TV2 be devised in such a way as to ensure the efficient discharge of the public service obligation (see paragraph 106 of the other judgment under appeal). Those conclusions are at the core of the concurrent appeals pending before the Court.

19.      If TV2 is successful in claiming in its appeal in case C‑649/15 P that the General Court was wrong to hold that only part of the measures at issue did not involve State aid, then the present appeal — which is predicated on the notion that the measures at issue constitute aid for the purpose of Article 107(1) TFEU — may become devoid of purpose.

20.      That said, the present case nevertheless raises an important point of law which the Court has not ruled on previously and which requires attention. Notwithstanding the outcome of those other appeal procedures, I shall consider the present appeal in its current state.

21.      Viasat relies on three grounds of appeal. First, Viasat argues that the General Court erred in law in rejecting Viasat’s claim that the Commission failed, in the contested decision, to observe its duty to state reasons under Article 296 TFEU. Second, Viasat contends that the General Court erred in law when stating that the Commission was not required, for the purpose of its assessment under Article 106(2) TFEU, to take account of the fact that aid to TV2 had been granted without observing fundamental principles of transparency and cost efficiency. Lastly, Viasat argues that the General Court itself erred in failing to examine diligently and deal with Viasat’s claims.

22.      I find it appropriate to commence my analysis with the second ground of appeal.

B –    The second ground of appeal

1.      Arguments of the parties

23.      Viasat submits that in order to declare aid compatible under Article 106(2) TFEU, certain conditions must be met. First, a service of general economic interest must be defined by the Member State (‘the requirement of definition’); second, the provision of that service must be entrusted by that Member State to a given undertaking (‘the requirement of entrustment’); and third, (i) the application of the rules of the Treaties, including the rules on State aid, must obstruct the performance of the particular tasks assigned to that provider (‘the obstruction test’), and (ii) derogation from those rules must not affect the development of trade to such an extent as would be contrary to the interests of the Union (‘the balancing test’).

24.      Viasat argues that the obstruction test must always mirror the Treaty rules from which derogation is sought. In that respect, Viasat states that the requirements of definition and entrustment, and the prohibition on overcompensation which follows from the balancing test, which must all be complied with under Article 106(2) TFEU, correspond in its view to the first and third Altmark conditions. On that basis, Viasat argues that, following the judgment in Altmark, the obstruction test requires an analysis of whether it would obstruct the performance of the service of general economic interest to require that (a) the parameters of compensation must be set out in advance in a transparent and objective manner (in line with the second Altmark condition), and (b) the service in question must be awarded following a public tender or the compensation must be limited to what is necessary to cover the cost of a cost-efficient, well run undertaking (in line with the fourth Altmark condition). Viasat argues that the Commission failed to do so in the contested decision and that the General Court, in turn, omitted to censure this in the judgment under appeal.

25.      Moreover, Viasat specifically contends that the General Court erred in law by (i) relying on the judgment in M6 (16) and other judgments delivered by that court in order to dismiss Viasat’s action; (ii) holding that Viasat’s arguments led to a logical impasse, as Article 106(2) TFEU would, inter alia, become a ‘dead letter’; (iii) rejecting the significance of certain Commission communications and decisions of 2005 and 2011, referred to in paragraph 67 of the judgment under appeal; and (iv) holding that the 2001 Broadcasting Communication (17) precluded the Commission from applying the methodology which, in Viasat’s view, flows from Article 106(2) TFEU.

26.      The Commission, supported by TV2 and the Kingdom of Denmark, disputes Viasat’s claims. In particular, the Commission submits that to the extent that Viasat argues that the 2001 Broadcasting Communication is invalid, that argument is out of time and therefore inadmissible. For its part, the Kingdom of Denmark states, inter alia, that in so far as Viasat’s line of argument aims to criticise the General Court for not verifying whether the Commission had satisfied itself, when assessing the compatibility of the aid measures in the contested decision, that TV2’s public service obligations had been put up for tender pursuant to the principle of transparency deriving from the rules on free movement in the FEU Treaty, that line of argument was not put to the General Court at first instance and is therefore inadmissible.

2.      Assessment

27.      I find it appropriate to deal with the objections of admissibility raised by the Commission and the Kingdom of Denmark in connection with the arguments to which they relate. I therefore turn immediately to the substance of Viasat’s ground of appeal.

28.      To be sure, the relationship between Articles 106(2) and 107(1) TFEU has, over the years, been rather unclear. That lack of clarity has been most apparent in the field of the financing of services of general economic interest. However, in the judgment in Altmark, the Court, sitting in Full Court formation, famously adopted a new approach, which some have referred to as the ‘conditional compensation approach’. (18)

29.      The four conditions laid down by the Court in Altmark concern the issue whether an advantage has been granted to an undertaking. Hence, they relate to a constituent part of the concept of ‘aid’ under Article 107(1) TFEU. (19) In practice, commentators have observed that, due to their strictness, those conditions have not been met in many cases. (20) The direct consequence thereof is that the main provisions by which State aid may be authorised, namely Article 106(2) and Article 107(2) and (3) TFEU, still play a central role.

30.      Those considerations seem to have been implicitly acknowledged in the judgment under appeal. In paragraph 63 of that judgment, the General Court held that even if they are somewhat similar, the two sets of conditions which follow, respectively, from the judgment in Altmark and from Article 106(2) TFEU, respond to fundamentally different questions. In its view, the Altmark conditions are upstream of the conditions under Article 106(2) TFEU, which concern compatibility. That main conclusion led the General Court, in paragraphs 75 to 99 of the judgment under appeal, to consider and reject the various arguments which the appellant had put forward to support its theory. The appellant now wishes the Court to validate that theory and to hold that, in rejecting the arguments put forward by the appellant, the General Court erred in law.

31.      However, the General Court committed no such error.

32.      From the outset, an important distinction lies between, on the one hand, the Altmark judgment and the conditions contained therein and, on the other hand, Article 106(2) TFEU and its requirements. As mentioned, the former are used to determine whether an advantage has been granted and therefore, more generally, concern the concept of ‘aid’ under Article 107(1) TFEU. This precedes the assessment under Article 106(2) TFEU, which deals with the question whether an aid measure may be declared compatible. If the Altmark conditions are met, then there is no aid for the purpose of Article 107(1) TFEU and, consequently, no reason to consider applying Article 106(2) TFEU. That distinction, moreover, entails different practical effects.

33.      On the one hand, a finding of State aid under Article 107(1) TFEU triggers certain legal consequences, such as the duty of prior notification and the prohibition on implementation directed at Member States under Article 108(3) TFEU. (21) Those considerations explain why a decision based on Article 107(1) and (3) TFEU which, while classifying the measure in question as State aid, declares it compatible with the internal market, is a challengeable act under Article 263 TFEU. (22) Moreover, national courts must safeguard the rights of individuals from a breach of Article 108(3) TFEU. (23)

34.      On the other hand, the assessment of the compatibility of aid measures with the internal market falls within the exclusive competence of the Commission. (24) That exclusive competence in approving State aid extends to Article 106(2) TFEU. (25) That means that Article 106(2) TFEU is not directly applicable for the purpose of authorising State aid. (26) Holding otherwise would defeat the aim of the system of prior control of State aid, which requires that the implementation of planned aid is to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision. (27)

35.      It follows from the above that Article 106(2) TFEU would become irrelevant if the only way for an aid measure to receive the Commission’s approval under that provision were if it complied with the Altmark conditions.

36.      For its part, Viasat states that it does not disagree with the notion that Articles 106(2) and 107(1) TFEU concern distinct issues, but claims that this does not address the arguments it put forward at first instance. However, that statement is hollow in that it refuses to recognise the consequences flowing from that distinction.

37.      First, I would call to mind that the consequence of the judgment in Altmark is to facilitate the assessment, by the authorities of the Member States and the Commission, as to whether compensation paid to an undertaking in return for the performance of a public service obligation amounts to an ‘advantage’ for the purpose of Article 107(1) TFEU. In that respect, those conditions attempt to answer the hypothetical and counterfactual question whether the undertaking concerned would have obtained the compensation at issue under normal market conditions, that is to say, the conditions which apply to a given market absent Member State intervention. (28) By contrast, Article 106(2) TFEU is premised on the idea that the Member State does intervene in favour of an undertaking by entrusting it with the operation of a service of general economic interest.

38.      Second, it is true that, in Ferring, the Court held that compensation to a public service operator amounts to State aid under (now) Article 107(1) TFEU to the extent that the advantage at issue exceeds the additional costs borne in discharging the public service obligations imposed, and that if that is the case, that advantage cannot, in any event, be regarded as necessary to enable it to carry out the particular tasks assigned to it and therefore cannot be covered by (now) Article 106(2) TFEU. (29) However, while the Court did refer to Ferring in Altmark, it also further moulded the concept of ‘advantage’ for such compensation under (now) Article 107(1) TFEU into the shape it currently assumes. However, unlike in Ferring, the Court was not asked in Altmark to interpret what is now Article 106(2) TFEU, which may explain why the Court did not take a position on the inter-relationship between those two provisions. (30) Yet that silence cannot be read as implying that the Court meant for the Altmark conditions to be taken into consideration in the application of Article 106(2) TFEU, as to do so would deprive Article 106(2) TFEU of its effect. (31) On the contrary, following the judgment in Altmark, the Court has continued to interpret Article 106(2) TFEU in the same way as it did previously. (32)

39.      Third, an interpretation of Article 106(2) TFEU which necessitates assessing whether it would obstruct the performance of the service of general economic interest to require compliance with the second and fourth Altmark conditions finds no support in the wording of that provision or in the case-law of the Court.

40.      Article 106(2) TFEU seeks to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy (or of policies with an economic or fiscal impact), with the Union’s interest in ensuring compliance with, principally, the rules on competition and the preservation of the unity of the internal market. In order for the rules of the Treaties potentially not to apply to an undertaking entrusted with a service of general economic interest under Article 106(2) TFEU, it is sufficient that the application of those rules obstruct the performance, in law or in fact, of the special obligations incumbent upon that undertaking. (33)

41.      In that connection, it is not necessary, for the application of Article 106(2) TFEU, that the survival of the undertaking itself be threatened. It suffices that, in the absence of the rights or aid measures at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, defined by reference to its public service obligations. In particular, the conditions for the application of Article 106(2) TFEU are fulfilled if maintenance of the rights or the aid measures at issue is necessary to enable their holder or recipient to perform the tasks of general economic interest assigned to it under ‘economically acceptable conditions’. (34)

42.      By contrast, Viasat’s argument implies that a compensation scheme for a public service provider which, in failing to meet the cumulative Altmark conditions, contains elements of aid, must, in order to receive approval, fulfil those very same requirements of objectivity, transparency and cost-efficiency. That would unduly narrow the concept of ‘economically acceptable conditions’. Although, as Viasat argues, Article 106(2) TFEU is a provision permitting derogation from the rules contained in the Treaties and must accordingly be interpreted strictly, there are limits to how restrictive its interpretation can be without frustrating its effectiveness. (35)

43.      Viasat’s interpretation of Article 106(2) TFEU appears particularly unpersuasive as regards the sphere of public service broadcasting. Indeed, the Protocol on the system of public broadcasting in the Member States, annexed to the Treaty of the European Community, (36) states that the provisions of what is now the FEU Treaty ‘shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and in so far as such funding does not affect trading conditions and competition in the [Union] to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account’. That protocol, while referring to the balancing test, does not refer to the obstruction test, let alone in the manner advocated by Viasat.

44.      It follows from the above that a proper application of Article 106(2) TFEU does not require taking account of the second and fourth Altmark conditions.

45.      None of the supporting arguments submitted by Viasat in its appeal cast doubt on that conclusion.

46.      First, as regards the judgments of the General Court criticised by Viasat, (37) the Court is not bound by that case-law, nor can the Court, in the absence of an appeal, verify that those judgments are correct. Therefore, an argument based on an allegedly incorrect line of case-law of the General Court in dealing with previous cases concerning Article 106(2) TFEU is irrelevant. The same applies to the Opinions of Advocates General (38) which Viasat contests; they do not bind the Court either. (39)

47.      Second, as regards Viasat’s argument that, contrary to the position taken by the General Court at paragraph 91 of the judgment under appeal, its view does not lead to a logical impasse, suffice it to say that that paragraph begins with the term ‘moreover’, indicating the supererogatory nature of that reason. Accordingly, that argument is ineffective. In any event, Viasat contradicts itself when it contends that its interpretation of Article 106(2) TFEU does not turn that provision into a ‘dead letter’: Viasat cannot claim that it is open for the Commission, on a case-by-case basis, to forgo one of the Altmark conditions in its assessment of compatibility, and at the same time posit that the obstruction test under Article 106(2) TFEU requires, so as to mirror Article 107(1) TFEU, the application of the Altmark conditions, as those conditions are cumulative under Article 107(1) TFEU.

48.      Third, as regards the Commission communications and decisions of 2005 and 2011, referred to in paragraph 67 of the judgment under appeal, Viasat concedes that those communications and decisions are not applicable, as held by the General Court at paragraph 93 of the judgment under appeal. It follows that they are of no relevance to the present dispute, which turns on whether the General Court was right to hold that the Commission is not required to consider the second and fourth Altmark conditions when assessing the compatibility of an aid measure under Article 106(2) TFEU.

49.      Fourth, as regards the argument that the General Court failed, in paragraphs 97 to 99 of the judgment under appeal, to take into account the significance of the 2001 Broadcasting Communication, unlike what the Commission insinuates, it does not appear that Viasat is challenging the validity of that communication. As for the merits of that argument, the fact that it might have been possible for the Commission, in light of recent communications and guidelines, to adopt an interpretation more in line with the appellant’s way of thinking does not demonstrate that the General Court erred in holding that the Commission was not required to do so.

50.      Lastly, as regards Viasat’s argument that Article 106(2) TFEU requires a competitive tendering procedure for the award of a service of general economic interest, the objection of admissibility raised by the Kingdom of Denmark, mentioned above at point 26, must be rejected, as it appears that Viasat did submit a substantially similar argument at first instance. However, Viasat’s specific contention that the public service broadcasting contract at issue in the contested decision is of cross-border interest does not follow from the judgment under appeal, and Viasat does not appear to have argued such a point at first instance. Moreover, that assessment requires a factual assessment, which is not a matter for the Court on appeal. Consequently, that specific contention is inadmissible.

51.      As for the point of law raised by that argument, the General Court did not err, in paragraph 99 of the judgment under appeal, when stating that Article 106(2) TFEU does not require a competitive tendering procedure for the award of a service of general economic interest. As stated by the Commission, Article 106(2) TFEU allows for derogation from ‘the rules contained in the Treaties’, which include the rules on free movement and the general principles deriving therefrom, in so far as that institution is satisfied that the obstruction and balancing tests are respected and subject to the review of the EU Courts. In that sense, the Amsterdam Protocol cannot be understood in any way other than confirming the principle that Member States may grant directly, in the public interest, special or exclusive rights to an undertaking in the form of a public service broadcasting concession.

52.      It follows from all the above that the second ground of appeal must be rejected.

C –    The first ground of appeal

53.      By its first ground of appeal, Viasat submits that the General Court erred in rejecting its ground for annulment alleging that the Commission in the contested decision had failed to observe its duty to give reasons under Article 296 TFEU.

54.      At paragraph 103 of the judgment under appeal, the General Court rejected this ground for annulment, stating that ‘the fact that the contested decision does not mention the role of the second and fourth Altmark conditions in the assessment of the compatibility of the measures concerned with the internal market is not attributable to an error of reasoning on the part of the Commission or to a failure to state reasons vitiating the contested decision, but rather to the fact that that decision applies a different analytical framework from that which favours [Viasat]’.

55.      As Viasat acknowledges, the contested decision would only be inadequately reasoned if the Commission had been under an obligation to apply the analytical framework which, according to Viasat, flows from Article 106(2) TFEU.

56.      However, the General Court neither erred in law in considering that the Commission was under no such obligation, nor did it therefore err in considering that the contested decision was sufficiently reasoned. Consequently, this ground of appeal must be rejected.

D –    The third ground of appeal

57.      In the concluding part of its appeal, Viasat submits, in passing, that ‘the General Court erred when failing to examine Viasat’s claim to the [requisite] standard’ and that ‘in the present case, the General Court’s examination of Viasat’s claims does not live up to the standard set out in … case-law’.

58.      Assuming, for the sake of argument, that this ground of appeal is directed at all paragraphs of the judgment under appeal, I concur with the Commission that it is in any event insufficiently developed for the other parties to respond to or for the Court to rule on. Consequently, it is inadmissible. (40)

E –    Conclusion

59.      In my view, it follows from all the above that none of Viasat’s grounds of appeal are successful. Accordingly, the appeal ought to be dismissed in its entirety.

V –  Costs

60.      In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission and TV2 have applied for costs and the appellant has been unsuccessful, Viasat should be ordered to bear its own costs and to pay those incurred by the Commission and TV2. Moreover, it follows from Article 140(1) of those rules, which applies to the procedure on appeal by virtue of Article 184(1) thereof, that the Kingdom of Denmark should bear its own costs.

VI –  Conclusion

61.      In light of the foregoing, I propose that the Court should:

–        dismiss the appeal;

–        order Viasat Broadcasting UK Ltd to pay its own costs as well as those of the European Commission and of TV2/Danmark A/S;

–        order the Kingdom of Denmark to pay its own costs.



1 – Original language: English.


2 – Judgment of 24 September 2015, Viasat Broadcasting UK v Commission, T‑125/12, EU:T:2015:687 (‘the judgment under appeal’).


3 – Commission Decision of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark (OJ 2011 L 340, p. 1) (‘the contested decision’).


4 – I should point out that, notwithstanding the fact that Viasat requested the General Court to annul the contested decision (see paragraph 30 of the judgment under appeal), it appears that the General Court redefined, in the introductory part of the judgment under appeal, the subject matter of the action before it in stating that Viasat sought the ‘annulment in part of [the contested decision]’ (emphasis added).


5 – Judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraphs 89 to 93 (‘Altmark’ and ‘the Altmark conditions’). The Altmark conditions clarify when undertakings discharging public service obligations do not enjoy a real financial advantage from the compensation received in consideration for the discharge of those obligations and are accordingly not in a more favourable competitive position than their competitors. Those conditions are as follows: first, the undertaking receiving compensation must actually have public service obligations to discharge, and those obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. Third, the compensation paid cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourth, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations; see the formulation of those conditions set out, inter alia, in the judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraphs 87, 89, 91 and 92.


6 – Under Article 106(2) TFEU, ‘undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union’.


7 – See, in particular, judgments of 11 March 2009, TF1 v Commission, T‑354/05, EU:T:2009:66, paragraphs 124 to 147; of 1 July 2010, M6 v Commission, T‑568/08 and T‑573/08, EU:T:2010:272, paragraphs 127 to 141; of 7 November 2012, CBI v Commission, T‑137/10, EU:T:2012:584, paragraphs 289 to 301, and of 16 October 2013, TF1 v Commission, T‑275/11, not published, EU:T:2013:535, paragraphs 129 to 145.


8 – Commission Decision 2006/217/EC of 19 May 2004 on measures implemented by Denmark for TV2/Danmark (OJ 2006 L 85, p. 1, corrigendum published in OJ 2006 L 368, p. 112).


9 – Judgment of 22 October 2008, TV2/Danmark and Others v Commission, T‑309/04, T‑317/04, T‑329/04 and T‑336/04, EU:T:2008:457.


10 – For the sake of readability, I shall use the shorthand ‘TV2’ in this Opinion to refer to the Danish public service television broadcaster TV2/Danmark, irrespective of its legal form.


11 – Commission Decision C(2004) 3632 final in State Aid Case No N 313/2004 relating to the recapitalisation of TV2/Danmark A/S (summary publication in OJ 2005 C 172, p. 3).


12 – Orders of 24 September 2009 in SBS TV and SBS Danish Television v Commission, T‑12/05, not published, EU:T:2009:357, and in Viasat Broadcasting UK v Commission, T‑16/05, not published, EU:T:2009:358.


13 – Apart from the rulings mentioned in Part I of this Opinion, reference is also made to the orders of 22 March 2012, Viasat Broadcasting UK v Commission, T‑114/09, not published, EU:T:2012:144, and of 10 December 2012, Viasat Broadcasting UK v Commission, T‑210/12, not published, EU:T:2012:660.


14 – Judgment of 24 September 2015, TV2/Danmark v Commission, T‑674/11, EU:T:2015:684 (‘the other judgment under appeal’). The appeals currently pending are in cases TV2/Danmark v Commission, C‑649/15 P; Commission v TV2/Danmark, C‑656/15 P, and Viasat Broadcasting UK v TV2/Danmark, C‑657/15 P.


15 – That is why the General Court held, in the judgment under appeal, that it was unnecessary to rule on part of Viasat’s action for annulment.


16 – Judgment of 1 July 2010, M6 v Commission, T‑568/08 and T‑573/08, EU:T:2010:272.


17 – Communication from the Commission on the application of State aid rules to public service broadcasting (OJ 2001 C 320, p. 5).


18 – See Lynskey, O., ‘The Application of Article 86(2) EC to Measures Which do Not Fulfil the Altmark Criteria; Institutionalising Incoherence in the Legal Framework Governing State Compensation of Public Service Obligations’, World Competition Law and Economic Review, Kluwer Law International, 2007, Vol. 30, Issue 1, p. 157.


19 – See, to that effect, judgment of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraph 44.


20 – See, inter alia, Klasse, M., ‘The Impact of Altmark: The European Commission Case Law Responses’, in Szyzyczak, E., and van de Gronden, J.W. (eds), Financing Services of General Economic Interest, TMC Asser Press, The Hague, 2013, p. 36, and Nicolaides, P., ‘The Perennial Altmark Questions’, 27 October 2015, available at http://www.stateaidhub.eu/blogs/stateaiduncovered/post/3961 (last accessed on 7 November 2016).


21 – See judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 35. The duty of prior notification applies also to measures falling within the scope of Article 106(2) TFEU: see judgment of 21 October 2003, van Calster and Others, C‑261/01 and C‑262/01, EU:C:2003:571, paragraph 61 and the case-law cited.


22 – See, to that effect, judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraphs 40 to 42.


23 – See, to that effect, judgment of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 31, 33 and 40 and the case-law cited.


24 – See, to that effect, judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28 and the case-law cited.


25 – See, to that effect, judgment of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 17.


26 – Concurring, see the Opinion of Advocate General Léger in Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:13, point 56. For a different view, see the Opinion of Advocate General Tizzano in Ferring, C‑53/00, EU:C:2001:253, point 78.


27 – See, to that effect, judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 26.


28 – To that effect, see order of 5 February 2015, Greece v Commission, C‑296/14 P, not published, EU:C:2015:72, paragraph 34. Establishing the ‘normal market conditions’ presupposes an economic analysis: see judgment of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 61.


29 – Judgment of 22 November 2001, Ferring, C‑53/00, EU:C:2001:627, paragraphs 32 and 33 (‘Ferring’).


30 – I would also point out that, while one of the Commission’s grounds of appeal in the case leading to the judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, was the infringement of both (now) Articles 106(2) and 107(1) TFEU, the Court limited its assessment to (now) Article 107(1) TFEU and did not interpret (now) Article 106(2) TFEU; see, in particular, paragraphs 38 to 48 of that judgment.


31 – See, in that regard, the Opinion of Advocate General Léger in Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2002:188, point 79 et seq.


32– See judgment of 15 November 2007, International Mail Spain, C‑162/06, EU:C:2007:681, paragraphs 34 and 35.


33 – See, to that effect, judgment of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraphs 55, 56 and 59.


34 – See, to that effect, judgments of 19 May 1993, Corbeau, C‑320/91, EU:C:1993:198, paragraphs 14 and 16; of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraphs 59, 95 and 96, and of 15 November 2007, International Mail Spain, C‑162/06, EU:C:2007:681, paragraphs 34 and 35.


35 – See, to that effect, judgment of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 53.


36 – OJ 1997 C 340, p. 109 (‘the Amsterdam Protocol’).


37 – Judgments of 1 July 2010, M6 v Commission, T‑568/08 and T‑573/08, EU:T:2010:272; of 11 March 2009, TF1 v Commission, T‑354/05, EU:T:2009:66; 7 November 2012, CBI v Commission, T‑137/10, EU:T:2012:584, and of 16 October 2013, TF1 v Commission, T‑275/11, not published, EU:T:2013:535.


38 – Opinions of Advocate General Tesauro in Corbeau, C‑320/91, EU:C:1993:52, and of Advocate General Tizzano in Ferring, C‑53/00, EU:C:2001:253. Viasat also criticises the judgment of 27 February 1997, FFSA and Others v Commission, T‑106/95, EU:T:1997:23, which refers to those Opinions.


39 – Judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 25 and the case-law cited.


40 – See, to that effect, order of 6 February 2014, Thesing and Bloomberg Finance v ECB, C‑28/13 P, EU:C:2014:230, paragraph 25 and the case-law cited.